Trade Mark Agent Authorisation Must Be Stamped Like Power Of Attorney: Kerala High Court

The Kerala High Court has recently ruled that an authorisation allowing a trade mark agent to represent an applicant before the Trade Marks Registry must be stamped under the applicable Stamp Act, holding that the document has “all the trappings of a power of attorney”.

Justice Bechu Kurian Thomas held that the authorisation creates a right for the agent to represent another person.

"The authorisation prescribed under section 145 of the Act read with rule 19 of the Rules, is certainly an instrument creating a right on a person to represent another. Necessarily such an instrument, which has all the trappings of a power of attorney, must be stamped under the relevant Stamp Act where the instrument is executed.", the court ruled.

The court was dealing with a writ petition filed by advocate and trade mark attorney John Vadassery, who appeared in person. He challenged the Trade Marks Registry's practice of requiring applicants represented by trade mark agents to submit an authorisation stamped as a power of attorney. The writ petition was dismissed on September 30.

Vadassery argued that Section 145 of the Trade Marks Act, 1999 requires only that a person be “duly authorised in the prescribed manner” to perform an act before the Registrar. He contended that the provision does not specifically require a power of attorney.

He also argued that the authorisation contemplated under the Act and the Trade Marks Rules, 2017 is not an “instrument” and therefore need not be stamped. A plain-paper authorisation, similar to the authorisation used to allow another person to collect a postal article, should be sufficient, he contended.

The respondents maintained that the authorisation allows an agent to act on behalf of the applicant, receive service of documents and communications, and appear before the Registrar. They therefore contended that a duly executed power of attorney bearing the applicable stamp duty was required. The respondents also pointed out that the practice had been followed for a long time and that stamp duty is a State subject.

Section 145 allows an act required to be done before the Registrar to be performed by another person, instead of the applicant, if that person is duly authorised in the prescribed manner. It covers a legal practitioner, a registered trade marks agent and a person in the sole and regular employment of the principal.

Rule 19 prescribes the manner in which that authorisation is to be given. It requires the authorisation to be executed in Form TM-M and provides that service on the authorised agent will be treated as service on the person who gave the authorisation.

The court observed that the authority conferred on the agent can have legal consequences for the applicant. The agent can act on the applicant's behalf, accept service of notices and documents and appear before the Registry.

“The acts of the agent will bind the principal and can even create a right on him or affect his right,” the court observed.

The court held that the fact that Rule 19 prescribes a particular format does not itself decide whether stamp duty is payable.

“Neither the Trade Marks Act, 1999 nor the Trade Marks Rules, 2017 framed under it can control or determine the issue whether stamp duty is payable,” the court observed. Stamp duty, it noted, is a fiscal measure imposed on specified classes of instruments to secure revenue for the State.

The court then considered the definition of an “instrument” under the Kerala Stamp Act, 1959. The definition covers documents by which a right or liability is created, transferred, limited, extended, extinguished or recorded.

The Stamp Act also defines a power of attorney as an instrument empowering a specific person to act for and in the name of the person executing it.

The court held that the definition of “instrument” is wide enough to include every document by which a right is created. It observed that when the right to act on behalf of another is conferred by an instrument for a purpose not chargeable with court fee, stamp duty is attracted.

The court distinguished a vakalathnama filed by an advocate. Although a vakalathnama is effectively a power of attorney, it is chargeable to court fee when filed before a court or tribunal. Stamp duty therefore does not apply to it in that situation.

The same principle, however, could not apply to an authorisation filed before the Trade Marks Registry. The Registrar is an officer appointed by the Central Government and is neither a court nor a tribunal. The Kerala Court Fees Act and Suits Valuation Act, 1959 therefore do not apply to documents presented before the Registrar, the court held.

The court also relied on its earlier decision in The Institute of Chartered Accountants of India v. Union of India and Others, concerning authorisations filed before taxing authorities. In that case, the court had held that such authorisations were liable to be stamped under the Stamp Act where they were executed.

The court ultimately held that the authorisation prescribed under Section 145 of the Trade Marks Act read with Rule 19 is an instrument creating a right in a person to represent another. It has “all the trappings of a power of attorney” and must therefore be stamped under the relevant Stamp Act where it is executed.

The court declined to issue the declarations sought by Vadassery and dismissed the writ petition.